[IOT] possible compromise idea on timing "repose" issue

[Malcolm Hutty]

On 2017-06-09 21:36, McAuley, David via IOT wrote:
> Dear members of the IRP IOT,
> 
> The fourth item on our agenda for Monday's call (19:00 UTC) is the
> timing issue - this has been a difficult issue for us and Malcolm has
> very capably been leading it.
> 
> In my participant role, I am going to suggest a compromise position
> (not one that I have mentioned before). It seems there are reasonable
> views on both sides of the issue and I offer this as a compromise that
> may be a reasonable way forward.

[...]

> But we have grappled more with whether an overall "repose" period
> should apply.
> 
> My compromise suggestion is to choose a time-limitation period of
> repose analogous to a time limitation for claims of breach of
> fiduciary duty. A quick Wikipedia search led me to conclude that in
> California that would likely be four years.
> 
> So for overall repose, what about a cap of four years from date of
> ICANN action. Breach of fiduciary duty is not too far removed from the
> idea of breach of articles or bylaws.

Thank you for the kind words David, but this isn't really a compromise,
because this is a rather binary question.

The objection to repose is (in the main) an objection to repose in 
principle,
not a quibble over how long it should be before it kicks in.

Any form of words in which a claimant can be denied the opportunity to
bring a claim on the grounds that it is too late, even if he was 
formally
precluded from bringing it any earlier, is (for those who object to 
repose)
fundamentally unacceptable in principle.

Saying "well only for issues that take four years to implement" doesn't 
really
compromise on this. In fact, in practice, it is likely to be the most 
controversial
and difficult issue that will take longest to move from ICANN's 
decision-in-principle
to implementation in practice.

Sorry, I really do wish I could say something else. I do wish we could 
indeed
find something that would satisfy ICANN Legal as well as the community 
(or at
least, all those who used public comment to object to this).

But "repose" is an abuse of the deadline for filing, it isn't really a
deadline for filing, it's a narrowing of standing. I don't think it's
even within our powers, within the bylaws, to accept this proposal.
And if it were, it would still dishonour the transition settlement idea
of ICANN being held to account to its bylaws by any materially affected 
party.

Malcolm.
-- 
             Malcolm Hutty | tel: +44 20 7645 3523
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